Dear SCOTUS, There’s No ‘Equal Protection’ If Universities Can Rate Skin Color In Admissions

The Supreme Court hears oral arguments on Monday in the twin cases of Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina, with the plaintiffs in both cases asking the high court to overturn its 2003 decision in Grutter v. Bollinger, which held that institutes of higher education could consider an applicant’s race in making admissions decisions. Here’s your lawsplainer for the cases.

Students for Fair Admissions Inc., or “SFFA,” is an organization “dedicated to defending the right to racial equality in college admissions” and includes as members Asian American students who were denied admission to Harvard and the University of North Carolina. In making admissions decisions, both Harvard and the University of North Carolina consider the race of applicants, with the schools advantaging American Indian, Hispanic, and black applicants to the disadvantage of Asian American students. 

On behalf of its members, SFFA sued the University of North Carolina, arguing the state university’s consideration of race in admissions decisions violates the 14th Amendment’s equal protection clause, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” In its lawsuit, the SFFA highlighted the great disparity in admissions decisions, noting that an Asian American applicant in the fourth-highest decile of his graduating class held only a 6.51 percent chance of admission, while an African American applicant held a 57.74 percent chance of admission.

The constitution’s equal protection clause does not apply to Harvard because it is a private university. However, because Harvard accepts federal funding, it is subject to Title VI, which is a federal statute that provides, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 

The same year the SFFA sued the University of North Carolina, it filed a separate lawsuit against Harvard, challenging Harvard’s use of race in the admissions process under Title VI, alleging that “the university discriminates against Asian American applicants,” and “arguing that they are less likely to be admitted than similarly qualified white, Black, or Hispanic applicants.”

While the two lawsuits involved distinct laws — the first, the equal protection clause, and the second, Title VI — courts have long held that the protections of Title VI are coextensive with the Constitution’s equal protection clause. In other words, the same standard governs both public and private educational institutions, assuming the latter accepts financial assistance. And the governing standard was established by the Supreme Court in 2003, in Grutter v. Bollinger, when the high court held “that universities may consider race in their admissions processes as part of their efforts to achieve diversity on campus.” 

Grutter v. Bollinger

The lawsuits proceeded to trial with the SFFA taking a two-prong approach, arguing both that Grutter was wrongly decided and should be overturned,